Editor’s Note: The following is the third in a series of articles in which Mr. Yoo and Mr. Phillips will lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry is available here, the second here.
This week’s election results suggest that Justice Brett Kavanaugh allowed Republicans to defy a Democratic blue wave and keep the Senate. Democratic senators in North Dakota, Indiana, and Missouri who voted against his confirmation lost their reelection bids by large margins, while the sole Democrat who voted for him held on in West Virginia. But Kavanaugh’s confirmation fight will have effects far beyond the elections to the core issues that are driving division between the parties: abortion, gay marriage, and privacy.
Before everything devolved into a degrading abuse of the confirmation process, Kavanaugh’s fiercest opposition came from the usual source: abortion supporters. Protesters interrupted his hearing repeatedly with their screams to defend abortion, and characters from feminist dystopian TV shows made their required guest appearances. Pro-choice groups spent hundreds of thousands of dollars on television ads warning of Roe v. Wade’s death knell. With characteristic subtlety, activists sent over a thousand hangers, symbols of self-administered abortions, to Senator Susan Collins (R., Maine), one of the critical confirmation votes.
On one hand, the fury was unwarranted. As a lower-court judge for the last score of years, Kavanaugh gave little indication he is champing at the bit to send Roe v. Wade to the dustbin of history. In his only case touching on abortion, Garza v. Hargan (2017), Kavanaugh took the position that an illegal-alien minor did not have a right to obtain an abortion while in government custody. But the majority also held that the government could transfer the alien to the custody of an immigration sponsor so she could then obtain an abortion. For what it is worth, the full twelve-judge D.C. Circuit Court of Appeals, dominated by Obama appointees, overruled Kavanaugh’s panel and held that the alien minor had a right to an abortion even while in immigration custody. But conservatives had reason to find flaw with Kavanaugh too, because his panel allowed an escape hatch for the alien to seek an abortion.
Despite this position of compromise, the Left understandably considered the fight against Kavanaugh to be something of a final stand, because the fate of Roe v. Wade may well rest in the new justice’s hands. Justice Anthony M. Kennedy, whom Kavanaugh replaced, supplied the fifth vote on the Supreme Court to keep abortion rights on life support. Liberal justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor have voted in lockstep to strike down virtually any effort by the states to regulate abortion. But only Kennedy could give them the majority they so desperately seek. Kennedy’s strained efforts to conjure forth a right to abortion from a spare constitutional text had resulted in confused, even mystical definitions of privacy. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” Kennedy notoriously wrote in Casey v. Planned Parenthood, the critical 1992 case that upheld Roe. Kennedy’s self-defining aspirations created a new jurisprudence of subjectivity, wherein the Court would find rights wherever it so chose if some favored group felt its “own concept of existence” was threatened.
But with Justice Kennedy’s retirement, the era of constitutional mysticism has come to a close. Narrowing and ultimately overruling Roe will provide the common ground for the five conservative justices to finally define the Roberts Court. In 1992, Justice Clarence Thomas dissented from Casey v. Planned Parenthood when Kennedy joined Justices Sandra Day O’Connor and David Souter (all three appointed by Republican presidents) and voted to defend Roe. Thomas, moreover, has long made clear that he pays no heed to incorrect precedent. Justice Samuel Alito has become a reliable, even stalwart defender of traditional values and conservative jurisprudence. Justice Neil Gorsuch’s writings on natural law, assisted suicide, and euthanasia suggest that he would defend the state’s interest in preserving the life of the fetus. As a young lawyer in the Bush Justice Department, John Roberts drafted briefs asking the justices to overturn Roe. As chief justice, he has voted to uphold most state restrictions on abortion. If Roberts were to vote his beliefs rather than worry about the political standing of the Supreme Court (a big “if” after his vote to uphold Obamacare in 2012), Kavanaugh’s appointment should establish a 5–4 majority to end the regime of Roe.
Kavanaugh does not simply create a majority to overturn Roe. His arrival could trigger a wholesale reconsideration of the Supreme Court’s misguided adventure into the world of unwritten, atextual, judicially created rights. For the last half century, the Left has turned to the Supreme Court to win what it could not in the normal political process. The Court has embedded the sexual revolution into the Constitution and “found” new progressive rights for privacy and dignity, as well as protections against animus, in a document that mentions none of the above. Conservatives should not seek to overturn Roe because they are obsessed with abortion; they should demand its reversal because it represents a politicization of the Supreme Court and an abuse of the Constitution to short-circuit democracy in the service of the latest left-wing ideals of the day.
The Court careened off the constitutional rails in 1965. In Griswold, the justices struck down a Connecticut law that prohibited married couples from using birth control because it violated a new right to privacy. Lacking any support in the constitutional text, the Griswold majority inferred the right from the “penumbras, formed by emanations” from other constitutional rights. The Warren Court’s shady constitutional analysis also resurrected a long-vilified doctrine: “substantive” due process. While the Fifth and 14th Amendments declare that no person can “be deprived of life, liberty, or property, without due process of law,” that text fairly screams out for courts to define fair process — does an individual have a right to a trial, to a lawyer, to confront witnesses, to provide evidence? What the due-process clause does not create is new substantive rights; indeed, it only requires the state to provide a fair process before taking them away. Eight years later, Roe v. Wade naturally followed. A majority of a still liberal Court peered into the constitutional shadows and found a right to abortion that had gone undiscovered for nearly two centuries.
While many on the left loved Roe’s result, some of its more serious thinkers worried about the Court’s reasoning and its embrace of a political role. Future Justice Ginsburg, for example, criticized the Roe Court, arguing that the right to abortion should be grounded in equal protection, not privacy, and that abortion would be better protected in the long term by state-by-state adoption, rather than the Court’s imposing its will from on high. The great liberal legal scholar John Hart Ely called Roe “a very bad decision,” but not because he disagreed with it on policy grounds. Rather, he viewed Roe as “bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Roe was the case that launched a thousand flights of jurisprudential fancy. We’ve already quoted Justice Kennedy’s strange mysticism in Casey. Gay rights would soon join the voyage. In Lawrence v. Texas, Justice Kennedy, writing for the Court, struck down a Texas law criminalizing homosexual relations between consenting adults. As Justice Thomas noted in his dissenting opinion, the law was “uncommonly silly,” but constitutional. Instead of relying on the political process and the states to regulate sex, as our nation had for two centuries, Kennedy invented a new constitutional right to intimate relations. He wrote: “liberty presumes an autonomy of self that includes . . . certain intimate conduct.” Lawrence itself involved “liberty of the person both in its spatial and in its more transcendent dimensions.” We have yet to find a constitutional text that mentions liberty “in its more transcendent dimensions.” In Lawrence, Roe gave rise to amateur poetry masquerading as constitutional analysis.
All of this led up to gay marriage, with Justice Kennedy once again holding the reins. We may support or oppose gay marriage (or abortion, or the criminalization of sodomy) as citizens at the ballot box, but our policy preferences should not bear on the proper interpretation of the Constitution. In Obergefell, however, the Court elevated the demands of the gay-rights movement over more than two centuries of state control over marriage. Relying on Griswold and Lawrence, Justice Kennedy wrote for a five-justice majority that “substantive” due process produced a constitutional right to marry someone of the same sex over the will of approximately two-thirds of the states. Justice Kennedy’s vacuous reasoning did not disappoint: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Who determines that “lawful realm,” and who decides which identities count? The Supreme Court.
Who needs a written constitution when five justices can just rewrite whenever they see fit? As Justice Scalia wrote in his dissent in Obergefell: “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.” If we are to return to the rule of law rather than the rule of the Supreme Court, conservative justices must restore the Constitution by removing the Court from these policy debates. If the people want to constitutionalize legal abortion or same-sex marriage, we can choose to do so.
But it may be a bridge too far and too fast to expect Chief Justice Roberts, and perhaps also Justice Kavanaugh, to reverse years of “substantive” due process in one fell swoop, overturn Roe and Casey on abortion, and return abortion and marriage to the states. Neither seems to share the urge toward sweeping reform of the Court and the Constitution held by Justices Thomas and Scalia. Conservatives will have to chart a more gradual path toward reversing the half-century-old liberal project to remake the Supreme Court into a political institution.
On abortion, the new Roberts Court can begin by restoring state discretion to sensibly regulate abortion. The Court could find that the state’s interest in the life of the unborn outweighs the mother’s privacy or autonomy interests in the third trimester — when babies can usually survive if born prematurely — unless the mother’s life is in danger. The subjectivity of Casey’s current test, which asks whether a state regulation places an “undue burden” on abortion, will forever invite the Court to be the final decision maker on every abortion regulation. Neither state officials nor lower-court judges can truly predict whether regulation of the medical training and standards of abortion clinics, or efforts to prevent partial-birth abortion, create an undue burden. Instead, all such cases must go to the Supreme Court, which aggrandizes its power first by constitutionalizing abortion and then by creating a vague test that drives all important cases up to its docket.
The Roberts Court could also set out some clear bright-line rules. First, the Court could allow states to define as a person an unborn child that has achieved viability outside the womb, which makes an unborn child a “person” for purposes of the Constitution. This would recognize the right of the state to bring the unborn child within the protections of a state’s laws to protect life. Likewise, the Court could allow states to criminalize abortions that kill an unborn child that can survive outside of its mother’s womb. Some states could choose to follow this path, and some would not. But by creating bright-line rules, the Roberts Court will allow states more space to articulate and defend their interests in abortion or in fetal life.
The Roberts Court could apply the same approach to same-sex marriage. For now, if the justices are unwilling to reverse Obergefell, they at least could prevent its judicially invented, atextual approach from overcoming the longstanding constitutional rights of others. It could find, as it largely punted on last year’s Masterpiece Cakeshop case, that states cannot coerce individuals into participating or assisting in gay marriages if they hold sincerely held religious beliefs otherwise. They could prevent employers, colleges, and universities that receive state funds from discriminating against students and faculty who wish to exercise their rights to free speech against gay marriage (or for it, for that matter).
But the central task for the Roberts Court is to replace the constantly evolving definition of privacy under “substantive” due process with a new test more closely tied to the constitutional text. What would that something else be? One possibility is the 14th Amendment’s privileges-and-immunities clause. Justice Thomas has pointed out that this clause, which the Supreme Court incorrectly read into oblivion in The Slaughter-House Cases in 1873, includes unenumerated rights. The problem for liberals, and the hope for conservatives, is that the framers of the privileges-and-immunities clause had a more radical vision of individual rights than is currently held today, one centered in economic rights. Radical Republicans of the Reconstruction Congress viewed one of the great sins of slavery as the denial of the right to free labor. Their 14th Amendment would provide more grounds for the recognition of rights against state economic regulation, such as onerous licensing and occupational requirements, overregulation of private property, and interference with private contracts. The justices could root their analysis of abortion, gay marriage, or the latest progressive invention in whether the framers of the 14th Amendment would have believed it to qualify as a privilege or immunity — the answer to Roe, Casey, or Obergefell would be “no,” in light of the extensive state regulation of intimacy before and long after enactment of the Reconstruction Amendments.
The new conservative majority on the Court might shy away from such a radical restructuring of its jurisprudence on privacy. But these first steps would make a great contribution to our constitutional and political system well beyond the narrow issues of abortion or gay marriage. Pulling the Court out of privacy would rejuvenate our politics. Under the baleful influence of the Warren years, the Supreme Court has steadily added more and more important social issues to its docket. Every time it claims constitutional power over another social issue, it deprives the people’s elected representatives in our statehouses or in Congress of the ability to determine the policies that govern them. As it assumes the jurisdiction of a legislature, the Court has steadily become more political. It is no surprise that the Kavanaugh nomination took on the character of an electoral campaign. Anyone who cares deeply about abortion, gay marriage, race, religion, or speech can achieve policy changes only by influencing the appointment of justices to the Supreme Court, rather than working to win elections and appeal to our elected representatives. They will view the decisions of the justices on these issues as political, rather than legal, in nature.
Restoring these issues to the political process will result in a diversity of policies on many issues. Our federal system already allows such difference on matters of life and death, such as the death penalty or euthanasia. The states, and the people, will become more responsible — leading to a more robust democracy rather than the increasingly fragile one we have today. It may ask too much for the Court to clip its own wings. But with Kavanaugh now there, it might just have the moxie to make the hard choice of correcting its indefensible privacy jurisprudence. After all, the best way for the Court to stay out of politics is for the Court to stay out of politics. And putting a stake in the heart of “substantive” due process, whether piecemeal or all at once, will go a long way towards that constitutionally required outcome.
— John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. James C. Phillips is an attorney in private practice and a non-resident fellow at Stanford Law School’s Constitutional Law Center.